Voluntary Underemployment Roadmap
We’re going to see more cases like this, where formerly successful entrepreneurs and wage earners claim a significant drop in their income makes it impossible for them to pay the child support the court had previously ordered, and where the recipient argues they really could be earning more.
The case is H.J.T. v. State ex rel M.S.M., Case No. 2080595 (Ala. Civ. App. October 9, 2009). Mom and Dad never married. Dad had previously owned and operated a successful trucking business. This case started when Dad filed to modify child support. The state on Mom’s behalf answered and disputed the necessity of modification. Then later, the state filed a separate action seeking to have Dad held in contempt for failure to pay back child support. There’s no mention in the opinion of why the state didn’t just file a counterclaim in the same action.
Dealing with the two claims separately, the trial court, Calhoun County Family Division, first assessed a $31,583.50 child support arrearage and ordered Dad incarcerated. Several days later the court denied his petition to modify child support.
Dad’s appeal confused the case numbers of the two cases but the appeals court gave him the benefit of the doubt and assumed the case he intended to appeal was the one to which he addressed arguments, the one dealing with his petition to modify. In response to Dad’s claim that the trial court erred when it denied his petition, the state argued that there was no material change in circumstances. The appeals court quickly disposed of this argument, concluding that Dad’s filing for bankruptcy, the loss of his business, and the drop in his income from $6,737 to $2,100 together indicate a material change in circumstances.
The state also argued that Dad was actually capable of earning the same income he had earned before and that therefore the trial court’s decision to leave child support unchanged was not error. The appeals court characterized this argument as one based on the principles of voluntary underemployment.
“If a trial court determines that a parent is voluntarily underemployed, it may, pursuant to the child-support guidelines, impute income to that parent in determining child support.” H.J.T. at 12. Actually, that’s not what the Rule says. What the Rule says is that once a court finds that a parent is voluntarily underemployed, it shall impute the income the parent would otherwise have had; there’s no “may” to it.
So the appeals court reversed. In doing so, it handed the trial court a thinly disguised instruction sheet on how to bolster its ruling. The trial court, said the appeals court, didn’t state whether it found that Dad was voluntarily underemployed, and didn’t state that it was imputing to Dad the income the trial court believed him capable of earning. Then the appeals court said that the trial court either needed to apply the guidelines or present findings of fact based on evidence before the court indicating why the guidelines were not followed. Presumably, this evidence could include evidence that Dad was voluntarily underemployed.
On the ground in Alabama. Okay, so now Dad has his victory. How did he think this was going to go down? Did he think the appeals court would roundly condemn the trial court for its high-handed theft from poor, struggling former entrepreneurs like him everywhere? That was never going to happen. Instead, Dad now returns to the judge he has just embarrassed by getting the judge reversed on appeal, a judge now armed with a play-by-play roadmap of how to do this so Dad won’t have a prayer on appeal. And that’s after Dad won! Makes you wonder, doesn’t it, how much attention litigants and their lawyers pay to the end game before they file an appeal.